Kagan vows to be unbiased, deferential to Congress

Posted: Mon 4:41 PM, Jun 28, 2010

WASHINGTON (AP) - Supreme Court nominee Elena Kagan pledged ather Senate confirmation hearing Monday to show the "evenhandednessand impartiality" the Constitution demands if she is confirmed,and to offer proper deference to Congress and the laws it makes. The court must ensure that "our government never oversteps itsproper bounds or violates the rights of individuals," she saidbefore a rapt Judiciary Committee and a nationwide televisionaudience on the opening day of her hearing. "But the court mustalso recognize the limits on itself and respect the choices made bythe American people." The 50-year-old solicitor general and former Harvard Law Schooldean appeared on track for confirmation before the high court opensa new term in October as she delivered a brief statement at the endof a day of senatorial speechmaking. Kagan stopped by the Oval Office of the White House to receivebest wishes from President Barack Obama on her way to the hearing.A few moments and little more than a mile distant, she strode witha smile into the committee room and took her place at the witnesstable - where senatorial ritual then required her to sit for hourswhile lawmakers delivered prepared speeches from an elevated daisacross the room. Finally, at mid-afternoon, it was her turn. "I will listenhard, to every party before the court and to each of my colleagues.I will work hard. And I will do my best to consider every caseimpartially, modestly, with commitment to principle and inaccordance with law," she said. Kagan faces hours of questioning, both friendly and otherwise,when the panel meets on Tuesday, a grilling that she has spenthours preparing for under the tutelage of White House advisers. Already the political fault lines were well-drawn. "I believe the fair-minded people will find her philosophy wellwithin the legal mainstream," said Sen. Patrick Leahy, D-Vt., thepanel's chairman. "I welcome questions but urge senators on bothsides to be fair. No one should presume that this intelligent womanwho has excelled during every part of her varied and distinguishedcareer, lacks independence." But the committee's senior Republican signaled that Kagan canexpect tough questioning. "It's not a coronation but aconfirmation process," said Sen. Jeff Sessions of Alabama. He saidshe had "less real legal experience of any nominee in at least 50years." And he said her decision to bar military recruiters fromHarvard Law School's career services office was in violation of thelaw - a legal conclusion disputed by the White House. Leahy and Sessions both said they hoped Kagan would answerquestions candidly, although the chairman also cautioned, "Nosenator should seek to impose an ideological litmus test to securepromises of specific outcomes in cases coming before the SupremeCourt." Judging by recent confirmation history, there was little chancethat Kagan would run afoul of that admonition. In the past quartercentury, most nominees have pledged fealty to the Constitution andlegal precedent - and little else - in their efforts to winapproval. Obama nominated Kagan to succeed retiring Justice John PaulStevens, a frequent dissenter in a string of 5-4 rulings handeddown by a conservative majority under Chief Justice John Roberts. Strikingly there were several such rulings in the hours beforethe hearing opened. In one, the court struck down part of ananti-fraud law enacted in 2002 in response to scandals involvingEnron and other corporations. In another, a 5-4 majority said the right to bear arms can't belimited by state or local laws any more than by federallegislation. Kagan's opening statement touched on her parents' growing up inimmigrant communities. She also praised Stevens, expressed a debtof gratitude to Justices Sandra Day O'Connor and Ruth BaderGinsburg for living "pioneering lives" and described the currentmembers of the court in glowing terms. She also recalled a clerkship nearly a quarter-century ago forJustice Thurgood Marshall, who she said viewed the court as thepart of government most open to everyone. "The idea is engraved on the very face of the Supreme Courtbuilding: Equal Justice Under Law," she said. "What this commandsof judges is evenhandedness and impartiality. What it promises isnothing less than a fair shake for every American." One Republican on the committee, Sen. Lindsey Graham of SouthCarolina, said he could say with certainty that Kagan's nominationwouldn't change the balance of power on the court. But in areference to Obama, he added, "I hope people will understand thatelections do matter." A handful of protesters gathered outside the Senate Hart OfficeBuilding across the street from the Capitol, some opposing Kagan'snomination, others expressing unhappiness that Republicans haven'tdone more to block it. By midmorning about 200 people had claimed tickets for seats inthe hearing room, the first ones arriving as early as 6:30 to lineup in the heat. By the time Kagan spoke, at mid-afternoon, thelined had dwindled considerably - scarcely a half-dozen would-bespectators were waiting for a chance to view the proceedings. "The Supreme Court is a wondrous institution. But the time Ispent in the other branches of government remind me that it mustalso be a modest one," Kagan said in her remarks, but did notelaborate on that point or on her statement that she would accordproper deference to Congress if confirmed. Numerous Democrats complained that under Chief Justice JohnRoberts the court has strayed far beyond what Congress intendedwhen it wrote laws regarding campaign finance, workplace rights andother issues. Conservatives on the court "can be and are veryactivist judges," Leahy told reporters after gaveling the day'ssession to a close. In a similar vein, Republicans argue that Obama is determined toturn the court in a more liberal direction. Several Republicans expressed concerns Kagan would become ajudicial activist along the lines of Marshall. Confirmed in 1967 asthe first black justice in history, he was a civil rights lawyerbest known in his earlier career for successfully arguing the casein which the Supreme Court ruled that segregation of public schoolsalong racial lines was unconstitutional. As a young lawyer, Kaganwas one of his clerks at the high court. Earlier in the day, Leahy predicted that Kagan would be clearedwith votes to spare. He brushed off GOP questions about her lack ofjudicial experience, saying there had been many successful justiceswho had no previous bench time. He cited Earl Warren, Hugo Blackand Robert Jackson. Sessions said he hoped there wouldn't be a filibuster, but saidhe was concerned that Kagan may be "outside the mainstream" oflegal thinking. He said Republicans have serious questions toresolve, including whether she would be too driven by her politicalviews if she were to take a place on the high court. The GOP was set to grill Kagan on controversial issues from gunsto abortion to campaign finance, arguing that she'd bring liberalpolitics and an antimilitary bias to the job of a justice. One of the issues Republicans have already focused on was herdecision, while at Harvard, to bar recruiters from the careerservices office because the military's policy on homosexualityviolated the school's nondiscrimination rules. She was alsostrongly critical of the "don't ask, don't tell" policy. The Pentagon said Kagan's stance made Harvard ineligible forfederal funding under a law that required schools to give militaryrecruiters the same access as other employers, a differentinterpretation from Sessions' statement that she had violated thelaw. Kagan's swearing-in would mark the first time three women wouldbe on the court at the same time. Justices Ruth Bader Ginsburg andSotomayor are the other two. -- Online: Senate Judiciary Committee: http://judiciary.senate.gov/

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